Prosecutors concerned about Bennington animal cruelty decision

BENNINGTON — A recent decision by a three-member panel of the Vermont Supreme Court concerns the Bennington County State’s Attorney’s office regarding the burden of proof that might be needed in animal cruelty cases involving pets living in unsanitary conditions.

The decision from Chief Justice Paul Reiber and associate justices Denise Johnson and Brian Burgess overturned an animal forfeiture order issued by Judge John Wesley in Bennington District Court in 2009.

Wesley had granted the state’s request to force Stephen M. Dufresne of Bennington to give up two dogs he owned in July 2009 when Dufresne was charged with two counts of cruelty to animals.

The appeal in this case may seem slightly unusual because the charges against Dufresne were dropped and his dogs have already been returned to him.

But there were issues to be resolved for both sides. According to the Supreme Court decision dated Aug. 24, Dufresne was still liable for the costs of boarding his dogs in the period when they were in the custody of the state.

For prosecutors, there was an issue of establishing some kind of precedent for cases of alleged animal abuse that involved sanitation instead of the more common cases of physical abuse or neglect.

Kate Lamson, a deputy state’s attorney in Bennington County, said she was concerned about whether the decision was in agreement with what the Legislature hoped to achieve with its animal cruelty statute.

“I think the legislative intent is unclear. I am concerned that since this is the first decision — at least that I have ever found when I was researching for this brief — that discusses sanitation as part of the animal cruelty statute exactly on point … that it does make it difficult for us to proceed on that theory. This is going to be at the high standard,” she said.

Vermont statute says one of the elements needed for the crime of cruelty to animals is that the accused person “deprives an animal which a person owns, possesses or acts as an agent for, of adequate … sanitation.”

Lamson said her interpretation of the decision is, if the state could not prove that unsanitary conditions directly caused a health problem to an animal, the judge should not have ordered the forfeiture.

Dufresne was charged with cruelty to animals after a Bennington police officer went to his home in July 2009 to investigate a burglary. The officer said he noticed a strong smell of urine and feces and noted “heavy saturation marks on the floor where the animals had obviously urinated or defecated causing the heavy stench.”

The officer also noted that both dogs had dirty coats and the home was dirty.

Wesley had concluded it was a close case, but decided the state had met its burden of establishing unsanitary conditions. Lamson said it was Wesley’s characterization it was a close case that led the state to drop the charges against Dufresne.

The three-justice panel, however, did not agree with Wesley’s conclusion because evidence presented by a veterinarian was inconclusive as to whether ear infections were caused by the unsanitary conditions or even “whether an animal would be bothered by living in an environment such as that found in (Dufresne’s) home.”

“The evidence in this case did not show that the dirty and cluttered condition of defendant’s home presented a health hazard to the animals,” the decision said.

Lamson said she was concerned that would leave the state unable to act until after an animal was already harmed by living in unsanitary conditions.

“I think in a common sense sort of way, that was the way I was coming at it was that obviously, dirty homes and dirty dogs, that’s a risk to the dogs and that if they had lived in a cleaner housing setting that the ear infections probably wouldn’t have been that bad,” she said.

According to Lamson, Dufresne worked with staff at Second Chance Animal Shelter in Shaftsbury to learn about providing his pets a cleaner environment but another case might involve a less cooperative owner.

Public Defender Frederick Bragdon, who represented Dufresne in district court but not in the Supreme Court appeal, said his client had not kept the dogs in any worse circumstances than Dufresne himself lived in. Bragdon pointed out that Wesley had called it a close call when many animal abuse cases are not close.

There might be an upside to the Supreme Court raising the standard of proof in these cases, according to Bragdon.

“(The state) should be careful giving dogs more protection than people. If these people were so worried, maybe they could get (Dufresne) who could use some assistance, some assistance so he doesn’t live in the same conditions as (would be illegal for) dogs,” he said.